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Question of foreign lawyers in Sabah arbitration cases
Published on: Wednesday, March 05, 2014

Kota Kinabalu: There is no question of Sabah lawyers wanting to have a monopoly over arbitration work in Sabah, said Sabah Law Association (SLA) President Datuk G.B.B Nandy @ Gaanesh.

In a statement Tuesday, he said the question before the Federal Court is whether foreign lawyers can appear in arbitration proceedings in Sabah, without having to obtain permission from the High Court on a case by case basis, as required under the Advocates Ordinance.

"It is emphasised that the said decision is not regarding 'who can be arbitrator' but rather on a lawyer from outside Sabah representing a party in arbitration proceedings in Sabah," he said.

Gaanesh was referring to a statement dated March 2 with the heading "NGO differs on who can be arbitrator" attributed to Sabah Branch Chairperson of the Royal Institution of Surveyors Malaysia, Catherine Yen, who according to him, chose to comment on a matter not knowing its full facts and on a matter which is subjudice or pending determination in the Federal Court.

Commenting on a matter pending before the court is improper and may amount to contempt of court, he said.

He said the statement (by Yen) has created a wrong perception to the public about Sabah lawyers' rights to represent parties in arbitration proceedings in Sabah to the exclusion of lawyers from outside Sabah - rights, which SLA will argue in the Federal Court that are protected under the Advocates Ordinance and the Federal Constitution.

This is one of the 20 Points that was agreed in the inter-government Committee Report and in the Malaysia Agreement, he said.

"In the world of arbitration, it is common for other professions including architects, engineers and surveyors to appear either as arbitrators or to act for a claimant or respondent because of their expertise to assist the arbitration tribunal in resolving disputes involving technical matters, for example, disputes concerning defective buildings or disputes over claims for work done by architects.

"Justice David Wong, in his judgement in the High Court, took the view that the question whether foreign lawyers can appear in arbitration cases in Sabah involving legal work and advocacy has implications to the livelihood of the members of the SLA.

"On appeal, the Court of Appeal allowed the appeal on the ground that the provisions of the Advocates' Ordinance do not prohibit foreign lawyers from appearing in arbitration proceedings in Sabah involving legal work and advocate," said Gaanesh. He said the SLA trusts that its clarification would put the matter in proper perspective.

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